A. Whether fraud is established in the event of using forged currency

B. Whether there is a reason to reverse the portion of the acquittal, and the part of the conviction should also be reversed

A. The purpose of the provision on the crime of forging currency is to protect public legal interests protecting credit and safety in public transaction. Since the crime of fraud is a crime against an individual’s property legal interests, the two crimes are different legal interests. Therefore, in a case where property is illegally acquired by exercising forged currency, the crime of uttering of forged currency and crime of fraud are committed.

B. In a case where there is a ground for reversal on the part of innocence, the part of acquittal and the part of conviction are concurrent crimes under the former part of Article 37 of the Criminal Act, and the original judgment is reversed

Articles 207(3), 347(1), and 37 of the Criminal Act; Article 391 of the Criminal Procedure Act

Defendant 1 and one other

Defendant 1 and Prosecutor (In all of the Defendants):

(B) Attorney Kim Yong-hwan (Defendant 2)

Seoul High Court Decision 78No1651 delivered on March 9, 1979

The entire original judgment against Defendant 1 and the part of not guilty (the attempted charge by fraud) in the original judgment against Defendant 2 are reversed, and this part of the case is remanded to the Seoul High Court.

1. We examine the part of Defendant 1’s grounds of appeal that there is a mistake of fact in the lower judgment.

The argument that there was a mistake in the judgment of the court below as to the guilty portion against the above defendant does not constitute a legitimate ground for appeal in this case where the court below maintained a sentence of one and half years of imprisonment with prison labor against the defendant. The argument is groundless.

2. We examine the Prosecutor’s grounds of appeal against the Defendants.

The court below maintained the judgment of the court of first instance which acquitted the Defendants of the charge of attempted fraud of this case on the grounds that it is reasonable to interpret that the crime of attempted fraud of this case is included in the crime of forgery of securities, forgery of documents, and the crime of attempted fraud, unlike the establishment of the crime of forgery of documents, since the crime of uttering of forged currency itself includes always fraudulent elements, and since the statutory punishment is aggravated, it is reasonable to interpret that the crime of attempted fraud of this case is included in the crime of forgery of false currencies.

The term "use of fake currency" refers to the use of fake currency as a genuine currency in the course of distributing fake currency, and it is not asked whether it is a consideration or free, so even in the case of a donation of fake currency to another person, it is established that the crime of uttering of fake currency is established. In such a case, since there is no illegal acquisition of any property, it cannot be said that the use of fake currency entails the acquisition of property at all times.

Therefore, the provision on the crime of uttering of counterfeited currency cannot be considered as a special provision on fraud.In addition, the provision on forgery of currency aims to protect public legal interests protecting credit and safety in public transaction. Since the crime of fraud is a crime against an individual's property legal interests, the two crimes are different legal interests. Therefore, if the property is illegally acquired by using forged currency, it shall be deemed that the crime of uttering of forged currency and the crime of conspiracy of fraud are established.

As such, the judgment of the court below, which differs from this opinion, shall be deemed to have committed an unlawful act by misapprehending the legal principles, and therefore, the appeal pointing this out is justified.

3. Therefore, the judgment of the court below on the above part (the charge of attempted fraud) cannot be reversed. Since this part of the facts charged (the charge of attempted fraud) and the guilty part of the judgment of the court below are concurrent crimes under the former part of Article 37 of the Criminal Act, the prosecutor's remaining grounds of appeal and the judgment on the guilty part of the judgment of the court below on Defendant 1 did not make any decision on the part that there was an error of illegality in sentencing in the judgment of the court below, but with respect to Defendant 1, the entire judgment of the court below on the same defendant is reversed, and this part of the case is remanded to the Seoul High Court. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yu Tae-hee (Presiding Justice)